Scowen v Scowen

[2014] NZHC 1901

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV 2014-488-130 [2014] NZHC 1901

UNDER	Section 52 of the Trustee Act 1956
IN THE MATTER OF	the Elwyn Peter Scowen Trust
BETWEEN	SANDRA ELIZABETH SCOWEN Plaintiff
AND	ELWYN PETER SCOWEN Defendant

Hearing:	(on the papers)
Counsel:	K W Clay for Plaintiff No appearance by or on behalf of Defendant
Judgment:	13 August 2014

JUDGMENT OF HEATH J

This judgment was delivered by me on 13 August 2014 at 12.00 noon pursuant to

Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
Helmore Ayers, Christchurch
Counsel:

K W Clay, Christchurch

SCOWEN v SCOWEN [2014] NZHC 1901 [13 August 2014]

[1]      Sandra Elizabeth Scowen is the daughter of Elwyn Peter Scowen.  She is the sole trustee of the Elwyn Peter Scowen Trust (the Trust).  The Trust owns a property at 343 Burwood Road, Christchurch.  Because Mr Scowen was the sole trustee of the Trust when it was settled on 25 January 2002, he remains the registered proprietor.

[2]      Mr  Scowen  has  been  diagnosed  with  Alzheimers’ Disease.    In  2013,  a medical practitioner certified that he was no longer sufficiently competent to manage his own affairs in relation to property.  Ms Scowen has been appointed as her father’s attorney in relation to property matters, under an Enduring Power of Attorney, signed for that purpose on 25 September 2012.

[3]      In terms of the relevant trust deed, a solicitor, Mr Ayers, has the power to remove and appoint trustees.   Ms Scowen was appointed as sole trustee by him, exercising that power.  Although Ms Scowen now has power to act as trustee, her appointment is insufficient to vest the Burwood Road property in her.  A Court order to that effect is required to comply with requirements of the Land Transfer Act 1952.

[4]      In those circumstances, Ms Scowen applies for an order under s 52(2) of the

Trustee Act 1956. That provides:

52  Vesting orders of land

…

(2)       Where  any such  order is consequential on the appointment of a trustee, the land or interest therein shall be vested for such estate as the Court may direct in the persons who on the appointment are the trustees.

….

[5]      The proceeding was filed in the Whangarei Registry of this Court because Mr

Scowen is currently resident in a Rest Home facility in that city.

[6]      I am satisfied that an order without notice to Mr Scowen is appropriate, to regularise  the  true  ownership  position  on  the  land  register.     There  are  no discretionary factors that would militate against the making of an order.   Indeed, there is a need for prompt disposition of the application because an agreement to sell

the property has been entered into.  It is conditional on the Court vesting title to the property in Ms Scowen as the substituted trustee.

[7]      I  am  also  satisfied  that  given  the  evidence  about  Mr  Scowen’s  medical condition, and the existence of an Enduring Power of Attorney as to property that is being exercised by Ms Scowen, that it is appropriate to dispense with service on him.

[8]      For those reasons, I make the following orders:

(a)       I dispense with service of this proceeding on Elwyn Peter Scowen.

(b)I make an order vesting in Sandra Elizabeth Scowen an undivided half share in 898 metres more or less being Lot 6 Deposited Plan 17270, together with an estate in Leasehold in Flat 1 Deposited Plan 70151 and  Garage  1  Deposited  Plan  70151  comprised  in  Composite Computer Register CB40D/370.

(c)      The costs of and incidental to this application shall be paid out of trust funds.

P R Heath J

Delivered at 12.00 noon on 13 August 2014